All patent applications in the United States are handled by the federal U.S. Patent & Trademark Office ("USPTO"). For instance, this agency evaluates patent applications and issues patents. This article provides an overview of that process, particularly meant for individuals considering embarking upon it.
Obtaining a patent is a lengthy and sometimes challenging process, and requires some preliminary research.
You must start by filing an application with the USPTO, which will be reviewed by patent examiners to ensure that it meets a series of qualifications. Before doing so, however, you must first:
To learn about the requirements for patentability, see Qualifying for a Patent FAQs. To learn about patent searches, see Patent Searching Online.
Once you are confident that your invention is a good candidate for patent approval, you are ready to begin the patent application process.
Each patent application filed with the USPTO goes through a rigorous examination process to ensure its completeness and validity. The application is assigned to a "patent examiner" (an employee of the USPTO), who inspects it to make sure that:
You and the examiner will exchange letters or phone calls until you reach an agreement about which parts of your invention the patent will cover, if any. This process typically takes between one and three years.
Do not be discouraged by the examiner's rigorous scrutiny of your application. Virtually no patent application, even if filed by a top-notch patent attorney, gets approved on the first submission. The application is not a "rubber stamp," such as when you submit a passport application or a name-change request. It is a lengthy process.
To reduce the number of problems, however, you need to carefully prepare your application, dotting your i's and crossing those t's. And while you do not necessarily need a patent attorney, the guidance of an expert patent lawyer is something to consider.
The key elements of a patent are:
The specification, with the help of the drawings, explains how to make and use the invention. The claims define the scope or boundaries of the patent. The application must also include an abstract that summarizes the invention.
The specification is constructed of several elements. Collectively, these form a narrative that describes and distinguishes the invention. Every specification must describe the invention so that someone knowledgeable in the field of the invention (whether it be medicine, machinery, or something else) can make and use it without further experimentation.
The specification must also disclose the "best mode" of creating and using the invention. If the inventor knows of a better way (or "best mode" by which) to create the invention and fails to disclose it, that failure could result in the loss of patent rights.
The particular parts of the specification include:
The claims of a patent are detailed statements of exactly what your invention covers. Because the scope of your patent rights are based on what you declare in the claims, they are among the most important section of the application. Be certain that your claims are worded carefully and accurately to ensure proper protection.
You will also need to include drawings with your application, if they are necessary for showing how the invention works. Some applications (such as for pure chemicals) do not include a drawing, unless a process or chemical combination can be diagrammed by a flowchart.
Your drawings must illustrate every aspect of the invention specified in the claims. The USPTO has strict requirements for both claims and drawings, so be sure to study other patents in your field to become familiar with the format of these sections. All patent applications must include a drawing if the subject matter permits.
You can file your application with the USPTO by mail or electronically. In recent years, online filings have dramatically increased.
To make sure that your documents arrive safely at the USPTO, do the following:
The USPTO will stamp the postcard with a receipt date and an application number. Carefully check the returned card to make sure the USPTO received all the documents you sent.
The PTO's Electronic Filing System (EFS-Web) enables patent applications, amendments, and other documents to be filed online.
The EFS-Web requires time to master, and you'll need to convert your documents to Portable Data Format (PDF). If you're filing just one application, it might be easier and faster to mail a paper copy to the PTO.
EFS-Web has some practical advantages, however, allowing you to:
If you are ready to begin the patent application process, check out Patent It Yourself by David Pressman (Nolo). This readable book takes you through the entire patent process, providing scrupulously updated information and clear instructions on how to write and file your patent application.
Fortunately, there are some discounts for smaller entities. Filers that qualify as "small entities" will receive fee discounts of approximately 50% on most USPTO fees, as reflected on the fee schedule.
What counts as a small entity? The regulations surrounding small entities are found in 37 CFR § 1.27. To qualify as a small entity you must either be:
If you or your business qualify as a small entity, you need only verify that status by executing a declaration when paying the fee.
If, however, you are obligated to license or assign the patent to a bigger entity that does not qualify as a small entity, then you could not claim small entity status. A common example of this is when someone licenses a patent to a large company such as Microsoft or Apple. Improperly claiming small entity status would be considered inequitable conduct and could result in the loss of patent rights.
As the name suggests, micro entities are even smaller than small entities. Micro entities will find discounts of 60-75% on most USPTO fees, as shown on the fee schedule. To qualify as a micro entity, the filer must qualify as a small entity (per the above) and must also meet the following criteria:
While small entity status has long been available, the new micro entity designation was created as part of the America Invents Act, which came into full effect in 2013. Congress's goal in enacting this new status, of course, was to encourage newer inventors and those who were not necessarily established or backed by large corporations.
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